Center Director
Base Metals Center for Excellence and Expertise
610 S. Canal Street, Room 300  Chicago,?IL?60607

RE: Application for Further Review of Protest Number 390118100874; 19 C.F.R. § 10.31(g)

Dear Center Director:

This is in response to the Application for Further Review (“AFR”) of protest number 3901-18-100874, filed on behalf of Premier Rides, Inc (“Premier Rides”), on September 7, 2018. Our decision follows. FACTS:

Premier Rides imported merchandise on September 29, 2017, which was entered and released on October 2, 2017. The imported merchandise was entered as a Type 01 entry for consumption from the United Kingdom, and classified under subheading 8503.00.9520, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), applicable to other parts of motors suitable for use, solely or principally, with machines. On January 5, 2018, Premier Rides submitted a Post Summary Correction (“PSC”) to change the entry type from a 01 to a 23, which is a Temporary Importation under Bond (“TIB”) entry under Chapter 98, Subchapter XIII of the HTSUS. The port denied the PSC on April 4, 2018, determining that Premier Rides had missed the PSC deadline and was unable to change the entry type at that time. The goods were liquidated as entered on May 4, 2018. Premier Rides filed protest on September 7, 2018, stating that due to an oversight, the goods were erroneously entered for consumption but should have been entered under a TIB. The protest requested a refund of duties paid.

As part of the protest record, Premier Rides submitted an invoice, dated September 14, 2017, for merchandise purchased on May 12, 2017, which is described as “new Forcepack LIM” (“LIM”) from Force Engineering International, located in the United Kingdom. The accompanying packing slip shows that Premier Rides purchased eleven of these LIM motors. Premier Rides also submitted two signed letters from its Senior Project Administrator. First, a letter referencing KUKA “Robotic Arms,” dated June 29, 2017. The letter attests that Premier Rides imported robotic arms from Germany for the purpose of attaching the arms to a roller coaster car in Cincinnati, Ohio. Once the robotic arms were attached, the car was intended to be exported to the People’s Republic of China (“China”) on or about December 31, 2018 – we note that the year is corrected by ink to read 2018 instead of 2017. Second, a letter dated December 15, 2017, with the subject line “Temporary Import,” which references merchandise titled Linear Induction Motors - Forcepack LIM motors. This letter attests that the LIM motors were imported from Germany for the purpose of conducting “Factory Acceptance Testing” and were intended to be exported to China on or about January 31, 2018. Finally, Premier Rides submitted information regarding the exportation of the motors, specifically a commercial invoice dated January 10, 2018, showing a sale of eleven LIM motors to a consignee located in China and a bill of lading signed February 15, 2018, showing the export of LIM motors to China. The port denied the protest in full for insufficient information, stating that the entry was subject to a denied PSC and there was no evidence of attempts to timely and appropriately correct the clerical error, such as through a cancellation of the entry. ISSUE:

Whether Premier Rides may substitute a TIB entry for an entry for consumption?


We initially note that the instant protest was timely filed within 180 days from the date of liquidation. 19 U.S.C. § 1514(c)(3)(A). U.S. Customs and Border Protection (“CBP”) liquidated the entry on May 4, 2018, and this protest was filed on September 7, 2018, within the protest filing deadline. Additionally, further review is warranted because “the protest involves questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee, or by the Customs courts.” See 19 C.F.R. § 174.24(b).

Chapter 98, Subchapter XIII, HTSUS allows for temporary duty-free entry under bond in certain circumstances. See e.g. Headquarters Ruling Letter (“HQ”) H112456 (June 17, 2013). CBP regulations permit the amendment of any entry type to an entry under Chapter 98, Subchapter XIII, HTSUS if “the articles have not been released from CBP custody.” 19 C.F.R. § 10.31(g). However, even if the articles have been released from CBP custody, the amendment may be made:

if it is established that the original entry was made on the basis of a clerical error, mistake of fact, or other inadvertence within the meaning of section 514(a), Tariff Act of 1930, as amended, and was brought to the attention of CBP within the time limits of that section. Id. The relevant section of the Tariff Act is codified at 19 U.S.C. § 1514(a). This section states that any “clerical error, mistake of fact, or other inadvertence . . . adverse to the importer, in any entry, liquidation, or reliquidation, and decisions of the Customs Service” as to the amount of duties chargeable or the liquidation or reliquidation of an entry is final unless a protest is filed with CBP or a civil action is commenced in the United States Court of International Trade. 19 U.S.C. § 1514(a). Note that in the absence of a clerical error, mistake of fact, or other inadvertence, “CBP has no authority to allow substitution of a consumption entry with a TIB entry under 19 C.F.R. § 10.31(g).” HQ H048944 (Sept. 19, 2011); see also HQ H248556 (July 23, 2015) (“Merchandise entered for regular consumption may not be converted to a TIB to avoid the application of AD/CVD duties.”). Therefore, an entry may be amended to a TIB through a protest if the original entry is proven as filed due to a clerical error, mistake of fact, or other inadvertence. 19 U.S.C. § 1514(a); 19 C.F.R. § 10.31(g). In this case, Premier Rides stated that due to an oversight, the goods were erroneously entered for consumption instead of entered under a TIB.

A mistake of fact is “a mistake which takes place when some fact which indeed exists is unknown, or a fact which is thought to exist, in reality does not exist.” C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, 22 (1972), aff’d by 499 F.2d 1277 (C.C.P.A. 1974) (internal citations omitted). A clerical error is a “mistake by a subordinate, who does not have any duty to exercise judgment.” Xerox Corp. v. United States, 219 F. Supp. 2d 1345, 1348 (Ct. Int'l Trade 2002) (internal citations omitted). An “inadvertence” is even broader in scope, encompassing oversights or involuntary accidents, even mistakes resulting from inattention and carelessness. Hambro Automotive Corp. v. United States, 603 F.2d 850, 854 (C.C.P.A. 1979).

An alleged mistake of fact, clerical error, or inadvertence must be substantiated in order to be corrected under protest. In HQ H112456, an importer wished to change an entry type from a consumption entry to a TIB entry under 19 C.F.R. § 10.31(g). After examining the entry documents, CBP determined that the importer failed to show a mistake of fact in part because there “were no notations or other information on the invoices or entry documents to indicate that the merchandise was being imported for testing or experimental purposes.” HQ H112456. Although a letter from the importer’s broker to the port referenced a TIB after the shipment was released, the ruling determined that “no evidence [was presented] to show that the decision to file a TIB entry was made prior to the” letter which was sent “11 days after the shipment was released.” Id.

Substantiation requires credible evidence of intent to effect an alternate entry type, which is dated prior to when the mistaken, erroneous, or inadvertent entry was filed. In HQ 725570, dated March 18, 1986, Customs allowed a consumption entry to be amended to a transportation and exportation entry. The importer in that case submitted a factory invoice demonstrating sale of the merchandise to a purchaser in Mexico, and a railway bill of lading identifying Mexico as the destination of the merchandise, along with Mexican landing and registration certificates. The broker explained that the merchandise was intended to be laden for exportation, but a railway employee had mistakenly requested release of the merchandise from CBP custody against the importer’s bond. HQ 725570. CBP determined the export transaction documents clearly demonstrated that but-for the railway employee’s clerical error, a transportation and exportation entry was intended to be filed.

In this case, Premier Rides submitted an invoice and packing slip dated September 14, 2017, for eleven pieces of a LIM motor purchased on May 12, 2017, from Force Engineering International. Unlike the invoice described in HQ 725570, this invoice concerns the importation, rather than the exportation, of the merchandise. This invoice does not evidence any intent to subsequently export the motors to China as the final destination of the merchandise after processing or testing within the United States. Akin to the documents described in HQ H112456, there are no notations, marks, or any indication whatsoever on the invoice, packing slip, or entry documents that the LIM motors were intended to be imported under a TIB.

The letters submitted by Premier Rides are not credible evidence of any clerical error, mistake of fact, or inadvertence. The first letter, referencing the importation of KUKA “Robotic Arms,” dated June 29, 2017, attests to the importation of such robotic arms from Germany. The letter does not refer to LIM motors at any point, which were imported from the United Kingdom, pursuant to the invoice and packing slip issued by Force Engineering International to Premier Rides. The second letter, dated December 15, 2017, was drafted after the entry was filed on October 2, 2017. As explained in HQ H112456, credible evidence of intent to file an alternate entry must predate the actual entry date.

Finally, the export documents, specifically the commercial sales invoice and bill of lading concerning LIM motors exported to China, are similarly non-credible evidence of intent to file an alternate entry because they are dated as of January and February 2018, several months after the entry date of October 2, 2017. These documents also lack any notations, marks, or any indication whatsoever that, prior to their entry for consumption, Premier Rides intended to import the motors it subsequently exported to China under a TIB. Consequently, none of the evidence submitted is sufficient to substantiate that Premier Rides committed a mistake of fact, clerical error, or even an inadvertence in filing a Type 01 entry for consumption in lieu of a Type 23 TIB entry. We also note that Premier Rides did not provide any explanation of the circumstances resulting in filing of a Type 01 consumption entry in the protest materials. CBP cannot divine such an explanation from any of the documents submitted.


Based on the above, we find that premier Rides has failed to demonstrate a mistake of fact, clerical error, or inadvertence as required by 19 C.F.R. § 10.31(g), and protest number 3901-18-100874 is hereby DENIED IN FULL.

You are instructed to notify the Protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification.? Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and the public on the Customs Rulings Online Search System (“CROSS”) at?https://rulings.cbp.gov/, or other methods of public distribution.


Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division